Giacci Bros Pty Ltd v Bunbury-Harvey Regional Council

[2001] WASCA 282 (S)

GIACCI BROS PTY LTD -v- BUNBURY-HARVEY REGIONAL COUNCIL [2001] WASCA 282 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 282 (S)
Court:	THE FULL COURT (WA)
Case No:	FUL:166/2000	Heard:	29 JANUARY 2002
Coram:	ANDERSON J	Delivered:	12/09/01
Supplementary Delivered:	8/02/02
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed in part
Category:	B
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Parties:	GIACCI BROS PTY LTD BUNBURY-HARVEY REGIONAL COUNCIL
Catchwords:	Costs Scale of costs Counsel fees Allowance for Queen's Counsel Application for special order to increase or remove limit Whether good or sufficient reason to order increased allowance
Legislation:	Supreme Court Rules, O 66 r 12(1)
Case References:	Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Re K L Tractors Ltd (In Liq) (1961) 106 CLR 318 Schmidt v Gilmour [1988] WAR 219 Collins v Wetralian Sands Ltd (1993) 9 WAR 56 McLean v Kerville, unreported; SCt of WA; Library No 6455; 1 October 1986 CAI Fences Pty Ltd v A Ravi (Builders) Pty Ltd, SCt of WA; Library No 8740; 27 December 1990 Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242 Broad v Westralian Sands, DCt of WA; Library No 4051; 10 June 1994

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : GIACCI BROS PTY LTD -v- BUNBURY-HARVEY REGIONAL COUNCIL [2001] WASCA 282 (S) CORAM : ANDERSON J HEARD : 29 JANUARY 2002 DELIVERED : 12 SEPTEMBER 2001 SUPPLEMENTARY
DECISION : 8 FEBRUARY 2002 FILE NO/S : FUL 166 of 2000 BETWEEN : GIACCI BROS PTY LTD

Appellant (Defendant)

AND

BUNBURY-HARVEY REGIONAL COUNCIL
Respondent (Plaintiff)

Catchwords:

Costs - Scale of costs - Counsel fees - Allowance for Queen's Counsel - Application for special order to increase or remove limit - Whether good or sufficient reason to order increased allowance

Legislation:

Supreme Court Rules, O 66 r 12(1)

(Page 2)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Appellant (Defendant) : Mr J C Curthoys
Respondent (Plaintiff) : Mr D J Garnsworthy

Solicitors:

Appellant (Defendant) : Slee Anderson Pidgeon
Respondent (Plaintiff) : Joe Scurria & Associates

Case(s) referred to in judgment(s):

Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Re K L Tractors Ltd (In Liq) (1961) 106 CLR 318
Schmidt v Gilmour [1988] WAR 219

Case(s) also cited:

Collins v Wetralian Sands Ltd (1993) 9 WAR 56
McLean v Kerville, unreported; SCt of WA; Library No 6455; 1 October 1986
CAI Fences Pty Ltd v A Ravi (Builders) Pty Ltd, SCt of WA; Library No 8740; 27 December 1990
Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1994) 13 WAR 242
Broad v Westralian Sands, DCt of WA; Library No 4051; 10 June 1994

(Page 3)

1 ANDERSON J: This appeal was dismissed on 12 September 2001 and the appellant was ordered to pay the respondent's costs, with liberty to the respondent to apply for a special order. The respondent now applies for a special order pursuant to O 66 r 12(1) of the Supreme Court Rules with respect to item 20(e) in the Supreme Court scale of costs. That is the item which relates to Queen's Counsel fees and it sets a limit of $10,500 for the first day of hearing, assuming two days of preparation. In this case, the affidavit filed on behalf of the respondent reveals that Queen's Counsel engaged on the appeal has rendered fee notes amounting to $47,070, of which $32,850 is referable to scale item 20(e), so that, unless a special order is made, the respondent will recover a maximum of $10,500 against the disbursement to counsel of $32,850.

2 Under O 66 r 12(1) the Court may order that a particular allowance in a relevant scale be raised or a limit removed where it is of the opinion that a special order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason. The basic principle is that the successful party to litigation should recover the costs which the party has reasonably and properly incurred in pursuing or defending the litigation. When it is demonstrated that an amount of work significantly in excess of that assumed by the relevant scale limit has, in fact, been performed, and the Court determines as a matter of judgment that, on the face of it, the work done appears to have been reasonably done, there will usually be good and sufficient reason for making the order, even if the case is not of unusual complexity or importance. A fortiori if it is. Schmidt v Gilmour [1988] WAR 219; Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 404.

3 As Burt CJ pointed out in Schmidt v Gilmour (supra) not every degree of inadequacy will result in the making of a special order. Burt CJ said at 220: "The inadequacy must be such as to constitute a good and sufficient reason and whether it does is a question for judgment in every case."

4 It is not for this Court to make a judgment about the reasonableness of the fee rate that Queen's Counsel has charged. That can be left to the taxing officer. It seems to me that, in this case, the question for the Court is whether more preparation time should be allowed; that is, whether an allowance of two days for preparation is so inadequate as to constitute a good and sufficient reason to make a special order. The following are the matters which I consider relevant to that question.

(Page 4)

5 The appeal book is of three volumes, comprising 950 pages. The reasons for judgment are of 53 pages. The grounds of appeal are lengthy, running to 13 pages. Although there are only eight numbered grounds, many of the numbered grounds are compound in the sense that they contain multiple subgrounds and extensive particulars. The grounds allege multiple errors of law and of fact. They plead, for example, that the trial Judge erred in finding that the fee for use of the refuse disposal site had been validly set under the Local Government Act 1995; erred in finding that the respondent had power to enter into a contract with users of the site; erred in finding that there was an intention to create contractual relations; erred in applying the principle in Re K L Tractors Ltd (In Liq) (1961) 106 CLR 318 and erred in his conclusions regarding estoppel and quantum meruit. In short, it was a wide-ranging attack on a lengthy judgment. On the respondent's side, there was a lengthy notice of contention, itself running to 13 pages. The appellant's outline of submissions is of 15 pages, containing six discrete headings. The respondent's submissions comprise 30 pages. The case is of some public importance as it is about the power and authority of a local government to fix its fees for access to and use of its waste management facilities and the manner in which it may validly do so.

6 In my judgment, and notwithstanding the fact that the same Queen's Counsel had represented the respondent in the trial, an allowance of only two days' preparation for this appeal is so inadequate as to justify a special order. A reasonable allowance would be for five days' preparation and I would be prepared to make an order directing the taxing officer to tax the fees of Queen's Counsel on the basis that he should be allowed five days' preparation instead of the two days' preparation stipulated in item 20(e).

7 If agreement cannot be reached on the form of the order, I will hear counsel.